Why Is It Hard To Have Sole Custody After A New Jersey Family Court Has Already Granted Joint Legal Custody?

March 20, 2017
By
Edward R. Weinstein

Share

As a child custody lawyer I am well aware that it is extremely rare for
a parent to be granted sole custody of the children during a divorce proceeding.
In my experience, I would estimate that at least 95% of cases in New Jersey
result in joint legal custody. The reason behind this is simple;. as long
as both parents are fit and willing to accept custody, the courts almost
always favor granting joint legal custody. Therefore and again, sole custody
is hardly ever ordered to one parent as both have a fundamental right
to be “equal” parents. With that in mind, it is quite difficult
to have a joint custody order modified down the road so that a parent
can obtain sole custody of the children. That was illustrated in the recent case of
Stewart v. Willey.

In the case the parties were never married, but had a son together who
was born in July 2008. The father had been working with the US Air Force
since February 2004 and was stationed at McGuire-Dix-Lakehurst, where
he lived since August 2011. The mother lived with her mother in Pemberton,
New Jersey, close to where the father was stationed.

In November 2008 while the father was overseas, the parties stopped seeing
each other. Over a year later in June 2009 the father returned home. He
regularly saw his son and continued to pay child support for him like
he had always done. Months later in May 2010, the father went overseas
again to Afghanistan for six months. Before leaving, he gave the mother
a gift to give to their son on his birthday. It was a book containing
his recorded voice to remind the child that his dad was never far away
from him. However, the father claimed that the mother made fun of the
gift on her
Twitter page.

Also in May 2010 before the father was deployed, the son was diagnosed
with a speech delay; however, the mother never tried to get him help,
nor did she tell the father about the diagnosis. Additionally, while the
child was enrolled in daycare, the teachers expressed their concerns about
his speech delay to the mother, yet she still did not enroll him in speech
therapy. Instead, she lied to the teachers and told them that the child
was receiving speech therapy at home.

In October 2010 the father returned home. He continued to see his son and
his relationship with the mother had improved. Yet, in August 2011 they
decided to call it quits for good. On November 3, 2011 the parties entered
into a consent order in which they agreed to
joint legal custody of their son, with the mother as the primary residential parent. A parenting
time schedule was not set in stone since the father did not know when
he would have to go overseas again, but he vowed to visit with his son
as often as he could.

As the months went on, the father learned that the mother was completely
ignoring the child’s speech issue and not getting him the proper
help that he needed. In April 2012, the father requested to take the child
to see a new doctor, concerned that he might be autistic. Following an
evaluation, the child was diagnosed with a “severe receptive and
expressive language disorder that caused a decreased ability to appropriately
verbalize his needs and thoughts.” The doctor recommended therapy,
as it was the only way the child would get better. Since the mother failed
to take the son for therapy the first few months, the father began to
do it himself every week.

Frustrated by the way the mother had been treating the child; the father
filed a motion to modify the custody order so that he would have sole
legal custody. He argued, among other things, that the mother was intentionally
ignoring the child’s special needs and that a change needed to be
implemented to consider the child’s best interests. Despite the
father’s efforts, the trial court held that it would be in the child’s
best interests that the parties continue to share joint legal custody;
however, the court did award the father sole legal authority to address
the child’s medical needs. The father appealed. On appeal, the father
argued that the trial court erred in awarding joint legal custody and
designating the mother as the primary residential parent because she was
unwilling to cooperate and communicate with him about the child’s
health, safety and well being.

The Appellate Division began its analysis by looking at the statutory factors
a court will consider when making a best interest of the child custody
determination. They include:

The parents' ability to agree and collaborate on matters related to
the child;

The parents' willingness to accept custody and any history of unwillingness
to allow parenting time (unless based on abuse);

The relationship of the child with his or her parent;

The history of domestic violence, if any even exists;

The safety of the child;

The preference of the child when “of sufficient age and capacity”
to make an intelligent decision;

The needs of the child;

The stability of the environment offered;

The quality and stability of the child's education;

The fitness of the parents;

The geographical proximity of the parents' houses;

The extent and quality of the time spent with the child prior to or after
the divorce;

The parents' employment responsibilities; and

The age and number of children.

However, since the parties’ child had special needs, the Appellate
Division also considered the following additional criteria:

Each parent’s role in getting the initial diagnosis of the child’s
condition and any delay caused by a parent in getting the diagnosis

Each parent’s ability to cope with the stress associated with raising
an autistic child

Both parent’s appreciation of the importance of seeking early help
for the child

The quality of the special education the child will receive while with
both of the parents

After considering the facts presented, the New Jersey Appellate Division
affirmed the findings of the trial court. It held that although the mother
was not the initiator to seek help for the child, it would still be in
his best interest to have his mother around to participate and influence
major decisions. Furthermore, the Appellate Division reiterated the fact
that the trial court granted the father sole responsibility for making
health related decisions for the child since he had proven to take an
active role since the diagnosis. This was the court’s way of accounting
for the area in which the mother was deficient.

The main takeaway from the case is that it is extremely tough to have a
joint custody order modified so that one parent has sole custody. If you
or a loved one is in a difficult situation like the one described, do
not hesitate to
contact my office to discuss.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.